You could get sued for not vaccinating your child against measles, but it’s not likely

If you decide not to vaccinate your child, and your child ended up spreading measles, could you get sued?

Let’s take the case of a parent who takes an unvaccinated child to pick up a younger sibling at a daycare center, and as a result, one of the kids at the daycare who is too young for a vaccination gets measles because this older child is carrying it.

Washington lawmaker aims to limit vaccine exemptions

As it turns out, Washington state is among the most liberal states for allowing parents to claim vaccine exemptions.

You can’t argue that the parent was somehow negligent because a lawyer would have a tough time proving the parent had a legal duty to get the child vaccinated.

“If the Legislature has seen fit to allow this exemption, it’s going to be really challenging for me, as a lawyer to prove that element,” says Professor Anna Mastroianni, who teaches law and medical ethics at the University of Washington.

In a case like the one above, however, she says a lawyer would look to file a lawsuit against the daycare center, to make sure they have enough screening protocols in place.

In other words, should the daycare be held responsible for making sure no infected person was allowed in the facility?

“But what lawyers also do is to try and think of analogies,” says Mastroianni. “Let’s think about peanut allergies. If your kid brings a peanut sandwich into the daycare center and you have been put on notice, that somebody in the class has a peanut allergy: Do you sue the parent? I haven’t seen any lawsuits specifically against the parent in that allergy setting, and that’s the closest analogy I could think of.”

Mastroianni looked at the case from the perspective of the person asserting their right not to get a vaccination. “It’s my understanding, (during) that kind of outbreak, that states do kind of have broad powers to quarantine people for the purposes of public health.”

But how far does that go in the case of measles?

Mastroianni says there are a couple of challenges. “(Child Protective Services) could come in and say, for example, that you are neglecting your child because you’re not vaccinating your child in the midst of an epidemic. Well I think there are some challenges there. There’s a New York case that I’m aware of where the child, him or herself, was going to be infected. In that case they found the father wouldn’t be exempted from the public health provision mandating the vaccinating of the children against measles. So you could have a case of neglect.”

Mastroianni says in the New York case, “Their justification for intervening under the neglect standard was to protect the health of that child. The argument was that the parent was acting negligently in that particular situation.”